F. Scott Fitzgerald said, "[T]he test of a first-rate intelligence is the ability to hold two opposed ideas in the mind at the same time and still retain the ability to function."1 That ability, cognitive dissonance, is possessed by the employee of EGL Inc. who was quoted by the Sunday New York Times in a front-page story:
It’s time the courts started awarding money to companies who have been wrongly accused of discrimination or harassment. As it stands, the employee has nothing to lose and the company has everything to lose. Maybe a few more companies need to defend these suits instead of settling up to make them go away.2
Discrimination suits are settled rather than defended for the very reason the speaker cites, "[T]he employee has nothing to lose and the company has everything to lose."3 Title VII of the Civil Rights Act of 1964 ("Title VII")4 has been antiseptically referred to as a statute "designed by Congress to equalize employer and employee in matters of employment."5 In fact, it converts the employment relationship into a ratchet that moves in only one direction, in favor of the employee. There is no legally important reason why anyone eligible to invoke Title VII should not complain to the boss today about discrimination. It is a cheap, easy, and risk-free way to gain a host of benefits, from elimination of rivals to tenure to a "golden parachute." But what if the claim were a lie? Irrelevant. The law does not care. It will establish, endow, and protect the worst of employees as though he were the beau ideal. A false and malicious claim of, say, sexual harassment is all it takes for an employee to deal himself the "retaliation card" and thereby take control of the employment relationship.6
This examines how Title VII, and in particular its ban on retaliation,7 puts the employee in charge of the workplace, and how the excesses might be curbed. Although the "victims" and "survivors" of discrimination might find this of use, they will be "underrepresented" in the audience for which this is intended: That smallest, most hated, and most indispensable of all our minorities, what Andy Rooney termed "the able minority" — "the relatively small number of people (who) are smarter, more energetic, and more capable than others and (who) end up getting 90 percent of all the good stuff." This audience is populated by men and women who are in the business of creating taxpayers. This speaks to the approximately 1.2 million businesses that are big enough to be subject to a Title VII lawsuit and small enough to go broke even if they "win" it.8
It Began as a Tool to Eradicate Racial Discrimin-ation. The Civil Rights Act of 19649 targets discrimination because of race not only with respect to employment, but also as to voting, public accommodations (e.g., restaurants, hotels, theaters), and public education. Year in and year out charges of racial discrimination exceed charges in any other single category of discrimination, (e.g., sex, retaliation, national origin).10 Only that part of the Act which dealt with employment, Title VII, prohibited discrimination because of sex, and only because of a last-minute amendment that was adopted with nearly no debate.11 Charges of sex discrimination still outnumber all charges except those of racial discrimination (but charges of retaliation are gaining fast).12 In 1986 the United States Supreme Court moved beyond quid pro quo harassment, when Meritor v. Vinson13 adopted the "hostile environment" form of sex discrimination coined by University of Michigan law professor Catharine MacKinnon.14 Today’s world recognizes what might be called hostile environment harassment by proxy. Just by complaining to a manager that an off-color joke made a co-worker "uncomfortable," an employee who is not himself a "victim" of discrimination will gain the "halo" of retaliation.
Now It Is All About Retaliation. Retaliation is the fastest-growing category of discrimination, and has been for years. Between 1992 and 2007 Title VII retaliation charges increased in number from 10,449 to 23,371 and climbed from 14.5 percent of all charges to 28.3 percent. The number of charges of retaliation in all categories15 already exceeds the number of charges of sex discrimination, and the number of charges of sex discrimination only slightly exceeds the number of charges of retaliation under Title VII.16 Unless the pace slows dramatically, retaliation will soon overtake sex and race discrimination and become the number one form of discrimination.
It is no wonder that retaliation is a growth industry. The class of potential plaintiffs dwarfs those for race and sex discrimination. 42 U.S.C. sec. 2000e-3(a) protects those who "made charges," those who "oppose" discrimination, and those who "testified, assisted, or participated in any manner in an investigation, proceeding or hearing under this title." That dispels the notion that Title VII does not protect white males.17 The prima facie case for retaliation is simple and all but codifies the post hoc fallacy:18 (i) claimant engaged in a "protected activity"; (ii) claimant suffered an "adverse employment action"; and (iii) the "protected activity" and the "adverse employment action" are connected.19 "Protected activity" is typically a complaint about discrimination. An informal complaint to management will suffice,20 and the complaint need not be true or provable or rise to the level of a Title VII violation.21 In terms of "adverse employment action," almost anything goes: a directive to take the day off or a directive not to take the day off; an increase in the workload or a decrease; a move from a separate office into a nest of cubicles or from the cubicles into an office. "We have broadly defined an adverse employment action in this circuit."22 The author knows of a case in which the "victim" alleged in a formal charge that an apology by the "perpetrator" for the offensive remark constituted retaliation. As for the third element of the prima facie case – the connection between the protected activity and the adverse employment action – the law raises an inference or presumption that the connection exists when the two events are close in time.23 At that point the retaliation plaintiff may rest.
The defendant-employer must then come forward and establish a non-discriminatory reason for the adverse employment action under pain of liability for retaliation. If a legitimate reason for the "adverse employment action" is established (e.g., insubordination, absenteeism, theft), the plaintiff will be given an opportunity to establish that the proffered reason is a "pretext."24 For retaliation (and only for retaliation), the Seventh Circuit Court of Appeals recognizes the "mixed motive" defense that was established for discrimination cases generally by Price Waterhouse v. Hopkins25 only to be promptly abolished, in all but retaliation cases, by the Civil Rights Act of 1991.26 The "mixed motive" defense, in gist, gives a defendant-employer an opportunity to prove by a preponderance of evidence that the "adverse employment action" was motivated in part by legitimate reasons.27
A retaliation plaintiff enjoys all of the remedies that are available to a plaintiff in race and sex cases. First there are the equitable remedies which are enumerated or read into 42 U.S.C. sec. 2000e-5(g), an original part of the Civil Rights Act of 1964: (reinstatement and other injunctive relief, back pay, interest on back pay, front pay28). Then there are the legal remedies provided by 42 U.S.C. sec. 1981a, part of the Civil Rights Act of 1991:29 the right to trial by jury; the right to compensatory damages for such injuries as "inconvenience"30; the right to punitive damages without proof of actual damage.31 Last but not least, there is 42 U.S.C. sec. 2000e-5(k), the fee-shifting statute. It states: "In any action or proceeding under this subchapter the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney’s fee (including expert fees) as part of the costs." Although it is neutral on its face, the fee-shifting statute is one-sided in its application. Fees will be awarded to the plaintiff-employee on the grounds that he is the "prevailing party" even if the case ends in a settlement, but fees will be withheld from the defendant-employer unless it demonstrates that the case of the plaintiff was utterly frivolous.32 And the sky is the limit on fees. In Alexander v. Gerhardt,33 an award of attorney’s fees in the sum of $58,480.87 was affirmed even though the award to plaintiff was only $10,000.00.34
Dealing and Playing the "Retaliation Card": A "Case Study". The following "case study" of how an employee can deal and play the "retaliation card" is one small part hypothetical and one large part actual case. Step one, submit to a manager a complaint of, say, sexual harassment. The employee need not be the "victim" and the charges need not be true. It is sufficient to be a co-worker who "opposes" discrimination, and a charge that is false and malicious will gain the "retaliation card" as surely as a charge that is true.35 Even in those jurisdictions which purport to require "good faith" or a "reasonable belief" that the conduct complained of violated Title VII,36 cases in which relief was withheld because the charges were false, fraudulent, malicious, perjurious, libelous, etc., are as rare as hen’s teeth. Step two, submit formal charges to the EEOC or to its State counterpart (e.g., Illinois Department of Human Rights). This will remove any doubt that a charge of discrimination has been made; this will obviate what may be the only employer-friendly aspect of Title VII, a short statute of limitations;37 and this will enable plaintiff to demand his right-to-sue letter and show that he exhausted his administrative remedies. Step three, take command.38 The employee might launch a campaign of demands and insubordination, demanding more money and more time off; defying and sassing supervisors; oscillating between demands for direct face-to-face contact with managers and demands that management have no dealings with the employee but only with the attorney for the employee. Is this minuet being orchestrated by the employee’s attorney? The financial incentives are certainly there. Perhaps the attorney has signed on for a lump sum retainer plus a percentage of the award to the plaintiff, plus an assignment of the right to pursue fees under 42 U.S.C. sec. 2000e-5(k). Something has to give. The demands of the employee will be met until they are not. The employee will be fired or will quit. A lawsuit for retaliatory discharge or for constructive discharge will follow.
The litigation scenarios are finite. The opportunity to settle early might be withheld, for it would deprive the plaintiff’s attorney of the opportunity to build a fee. To settle late would require the employer to pay a substantial fee to the plaintiff’s attorney. Were the employer to "win" at trial, which would require a "not guilty" on all charges, the employer would still bear its own considerable litigation expenses, including the fees of its own attorney. Anything short of an unqualified "win," and the employer would be confronted by (i) its own litigation expenses, (ii) an award to the plaintiff, and (iii) the plaintiff’s litigation expenses, including attorney’s fees.
There Will Be No Help Except Self Help. Congress and the courts cannot be counted on to withhold relief for retaliation unless the underlying sex or race discrimination is proved up; require early mediation; or otherwise level the playing field. The "respondent community" must take steps to help itself. One: stay small. Employ no more than 14 persons. Hire contract labor. Two: Condition employment on an agreement to submit discrimination complaints to arbitration. Contracts which so provide are enforceable.39 Three: Buy insurance. Violations of Title VII are "intentional torts" and outside the coverage of standard commercial liability insurance, but insurance can be found. Four: Create a human resources department, even if it is only a department of one. Designate a manager to handle all discrimination complaints, give written notice of this, and have every employee acknowledge in writing that he "got the memo."
Conclusion. Title VII and its ban on retaliation is not an "equalizer." It makes an 800 pound gorilla of a "victim" of discrimination.40 The speaker quoted at the top of this piece laments that employers do not contest discrimination actions more vigorously yet he knows full well the answer: "As it stands, the employee has nothing to lose and the company has everything to lose." If that is not the literal truth, it comes pretty close. A small employer could easily go broke defending a Title VII suit even if he managed to "win" it.
1 F.S. Fitzgerald, The Fitzgerald Reader (Charles Scribner‘s Sons: New York 1963) at 405 (excerpt from "The Crack-Up" (1936))
2 New York Times, April 29, 2001, sec. 1 at 24 cols. 5-6 (story starts on 1 above the fold).
4 42 U.S.C. sec. 2000e to 2000e-17
5 Pettway v. American Cast Iron Pipe Company, 411 F.2d 998, 1006 (5th Cir. 1969)
6 EEOC v. Crown Zellerbach, 720 F.2d 1008 (9th Cir. 1983); Pettway v. American Cast Iron Pipe Company, 411 F.2d 998, 1006 (5th Cir. 1969); Proulx v. Citibank, 659 F.Supp. 972 (S.D.N.Y. 1987), affd., 862 F.2d 304 (2d Cir. 1988); see also Johnson v. Univ of Cincinnati, 215 F.3d 561, 582 (6th Cir. 2000) and Womack v. Munson, 619 F.2d 1292, 1298 and n. 10 (8th Cir. 1980); but see Gilooly v. Missouri Department of Health and Senior Services, 421 F.2d 734, 742 (Colloton, J., concurring in part and dissenting in part) citing and quoting Mattson v. Caterpillar Inc., 359 F.3d 885, 891 (7th Cir. 2004): "‘An employee could immunize his unreasonable and malicious internal complaint simply by filing a discrimination complaint with a government agency," and "an employee could assure himself unlimited tenure by filing continuous complaints.’" The Seventh Circuit Court of Appeals has paid lip service to the notion that protection is available only to a claimant who has a reasonable belief that the challenged conduct violated Title VII. Hunt-Golliday v. Metropolitan Water, 104 F.3d 1004, 1014 (7th Cir. 1997), citing Holland v. Jefferson Natl. Life Ins. Co., 883 F.2d 1307, 1314 (7th Cir. 1989). However, the subject came up in the first place only because the conduct complained of did not rise to the level of a Title VII violation, and the author is unaware of any decision in which a plaintiff-employee was ordered to pay the fees of the employer’s attorney or otherwise sanctioned on the grounds that the requisite "reasonable belief" did not exist.
7 42 U.S.C. sec. 2000e-3(a)
8 Statistics from the U.S. Census Bureau indicate that some 1,313,928 "establishments" have between 10 and 99 employees. Title VII is available against any person, group or organization having a minimum of 15 employees. 42 U.S.C. sec. 2000e-(b).
9 Pub. L. No. 88-352, 78 Stat. 241, July 2, 1964.
10 Charge Statistics from the Equal Employment Opportunity Commission ("EEOC") FY 1992 through FY 2007 (available at www.eeoc.gov/stats/charges.html). In the 11 years between 1997 and 2007, both inclusive, the total number of charges received by EEOC ranged between 75,432 and 84,442 and averaged 79,782. Charges of racial discrimination ranged between 30,510 and 26,740, averaged 28,666, and accounted for up to 37.2 percent oif all charges, and never less than 34.9 percent of all charges.
11 110 Cong. Rec., February 8, 1964, 2577-84.
12 In the 11 years between 1997 and 2007, both inclusive, charges of sex discrimination received by EEOC ranged between 25,536 and 23,094, averaged 24,430, and accounted for between 30.0 percent of all charges and 31.5 percent of all charges.
13 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (12986)
14 Professor MacKinnon was co-author of the brief of respondent.
15 Other employment statutes prohibit retaliation as well, e.g., sec. 623(d) of the Age Discrimination in Employment Act of 1967, 29 U.S.C. sec. 621 et. seq.
16 For 2007 there were 26,663 charges of relation under all statutes (32.3 percent of all charges), 24,826 charges of sex discrimination (30.1 percent of all charges), and 23,371 charges of Title VII retaliation (28.3 percent of all charges).
17 See, e.g., Oncale v. Sundowner, 83 F.3d 118 (5th Cir. 1996); Reynolds v. School Dist. No. 1, 69 F.3d 1523 (9th Cir. 1995)
18 Post hoc, ergo propter hoc. After this, therefore because of this. The sun rose after the rooster crowed, therefore the sun rose because the rooster crowed.
19 McClendon v. Indiana Sugars, 108 F.3d 789 (7th Cir. 1997); Hunt-Golliday v. Metropolitan Water, 103 F.3d 1004 (7th Cir. 2004).
20 Hearn v. R.R. Donnelley & Sons Company, 460 F.Supp. 546 (N.D. Ill. 1978), citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1972).
21 See cases cited at n. 6
22 Stutler v. Illinois Department of Corrections, 263 F.3d 698, 703 (7th Cir. 2001), citing Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir. 1996). The Stutler case found that a lateral transfer with no loss of benefits or responsibilities did not constitute an "adverse employment action."
23 Dey v. Colt Const. & Development Co., 28 F.3d 1446 (7th Cir. 1994); Johnson v. Sullivan, 945 F.2d 976 (7th Cir. 1991); Collins v. State of Illinois, 830 F.2d 692 (7th Cir. 1987); see, Alexander v. Gerhardt Enterprises Inc., 40 F.3d 187 (7th Cir. 1994).
24 See Stutler v. Illinois Department of Corrections, 263 F.3d 698, 702 (7th Cir. 2001), citing McDonnell Douglas v. Green Corp., 411 U.S. 792, 802 (1973)
25 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989)
26 The Civil Rights Act of 1991. Pub.L 102-106, 105 Stat. 1072. For a quick history of the origin of the mixed motive defense, its abolition in all but retaliation cases, and its preservation for retaliation cases, see McNutt v. The Board of Trustee of University of Illinois, 141 F.3d 706 (7th Cir. 1998).
27 McNutt v. The Board of Trustee of University of Illinois, 141 F.3d 706, 707-09. (7th Cir. 1998).
28 Front pay does not appear in the text of 42 U.S.C. sec. 2000e-5(g). It is a judge-made alternative to reinstatement, which can and does prove impractical on account of the hard feelings generated by charges of discrimination.
29 Pub.L. 102-166, Title I sec. 102, 105 State. 1072, codified at 42 U.S.C. sec. 1981a.
30 "Inconvenience" is an element of compensable damage specifically enumerated by 42 U.S.C. sec. 1981a(b)(3).
31 Authority for recovery of punitive damages without proof of actual damage will be found in Shea v. Galaxie Lumber & Construction Co. Ltd., 152 F.3d 729 (7th Cir. 1998); Timm v. Progressive Steel Treating Co., 137 F.3d 1008 (7th Cir. 1998).
32 Christianburg Garment Co. v. EEOC, 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978); Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 566, 121 L.Ed.2d 494 (1994);
33 40 F.3d 187 (7th Cir. 1994)
34 To make the point that the law does not require proportionality between the amount awarded to a plaintiff and the fee awarded to the plaintiff’s attorney, Gerhardt cited several examples of large awards of fees, topped by a fee of $245,000.00 in a case where the damage award was only $33,000.00. Alexander v. Gearhardt Enterprises Inc., 40 F.3d 187, 194 (7th Cir. 1994) citing City of Riverside v. Rivera, 477 U.S. 561, 106 S.Ct. 2686, 91 L.Ed.2d 466 (1986).
35 See the Proulx, Pettway and Crown Zellerbach decisions cited at n. 6 above.
36 See, e.g., Holland v. Jefferson National Life Insurance Company, 883 F.2d 1307, 1314 (7th Cir. 1989).
37 The statute of limitations for Title VII is codified at 42 U.S.C. sec. 2000e-5(e), and basically requires formal charges within 180 days of the unlawful employment practice.
38 One way to show who’s boss is to serve the charges, together with an attorney’s cover letter, to a fax in the common areas of the office.
39 Gilmer v. Interstate/Johnson Lane Corporation, 500 U.S. 20, 111 S. Ct. 1647, 114 L.Ed.2d 26 (1991).
40 Where does an 800 pound gorilla sleep? Answer: Anywhere he wants to.
David McCarthy is the principal of Law Offices of David McCarthy. The firm was established in DuPage County and Chicago in 1989 and has had its offices in Naperville since 1991. He received his bachelor’s degree from the University of Notre Dame and a J.D., cum laude, from the John Marshall Law School, Chicago, in 1979. He concentrates his practice in litigation, contested probate, personal injury law, and business law.